Deputyship and Powers of Attorney

Lasting Powers of Attorney are documents you make while you have capacity, appointing attorneys to make decisions if you later lose capacity. You choose your attorneys and can give them specific instructions. LPAs are relatively quick and inexpensive to create.

Deputyship involves court applications when someone lacks capacity without LPAs. Family members must apply to be appointed deputies, a costly and time-consuming court process. Deputies face ongoing court supervision and restrictions not applicable to attorneys. LPAs are always preferable to deputyship.

Create LPAs as soon as possible, regardless of age or health. You must have mental capacity when making LPAs, so waiting until health deteriorates may be too late. Many people create LPAs when making Wills or when reaching retirement age.

LPA registration times with the Office of the Public Guardian vary. We’ll keep you updated on progress. They can’t be used until registered. Creating LPAs early ensures they’re ready if needed. Even young healthy people should have LPAs as accidents or unexpected illness can happen at any age.

Property and financial affairs attorneys manage bank accounts, pay bills, sell property, claim benefits, make investments, and handle all financial matters. These LPAs can be used while you have capacity if you authorise this, or only when you lack capacity.

Health and welfare attorneys make decisions about medical treatment, care home placement, daily care, and life-sustaining treatment. These LPAs can only be used when you lack capacity to make specific health and welfare decisions yourself. Attorneys must always act in your best interests.

Deputies must act in the person’s best interests following Mental Capacity Act principles. Property and affairs deputies manage finances prudently, keep detailed accounts, submit annual reports to the Office of the Public Guardian, and apply to court before making major decisions.

Deputies must keep the person’s money separate from their own, make records of all transactions, and can face removal and personal liability for breaches. Health and welfare deputies make care and treatment decisions but are much less common than property and affairs deputies.

Deputyship application costs depend on the complexity of the case and include legal fees, court fees, and medical evidence. Contact us for an estimate. Complex or disputed applications cost more. The annual Office of the Public Guardian (OPG) supervision fee for deputies in England and Wales is £320 for general supervision. A reduced “minimal supervision” fee of £35 applies if the person’s assets are below £21,000.

These costs can usually be paid from the person’s estate subject to court approval. Compare this to the lower cost of making LPAs while you still have capacity. Contact us for our current LPA fees. Deputyship is always more expensive than creating LPAs in advance.

You can’t be someone’s attorney if they lack capacity, as only people with capacity can create LPAs. If someone loses capacity without creating LPAs, you must apply for deputyship instead. However, if you’re already someone’s attorney under a registered LPA, you don’t need deputyship as the LPA gives you authority.

If an LPA doesn’t cover all decisions needed, you might be an attorney for some matters and need deputyship for others. The court can appoint existing attorneys as deputies if appropriate. Having LPAs in place always avoids the need for deputyship applications.

If multiple attorneys are appointed to act jointly (all must agree), disagreements can paralyse decision-making. The LPA might specify how disputes are resolved, or applications to court may be needed. If attorneys act jointly and severally (independently), individual attorneys can make decisions without others’ agreement.

For deputies, the court resolves disputes between joint deputies or between deputies and family members. Deputies who persistently disagree may face removal. Choosing appropriate attorneys or deputies and clearly defining their powers prevents many disputes. Professional deputies can be appointed when family members can’t work together.